Belo Monte Justice Now! Legal Campaign

Date:

Tuesday, November 6, 2012

The Brazilian Judiciary’s handling of serious irregularities in the licensing process for the Belo Monte hydroelectric dam on the Amazon’s Xingu River has been roundly questioned by Brazilian and international civil society as well as by Brazil’s Federal Public Ministry and Public Defenders.

The authorization of Belo Monte by Brazil’s National Congress by means of Legislative Decree no. 788/20051 violated the right to free, prior and informed consent guaranteed to indigenous peoples who are affected by the project.2 Fulfilling of its role to defend the Brazilian Constitution and in defense of human rights, the Federal Public Ministry (MPF) filed a Civil Public Action lawsuit in 2006 to annul the cited congressional decree.3 Six years passed before courts ruled upon the lawsuit’s merit, when the relevant circuit court (TRF-1) finally ruled that construction be paralyzed on August 13, 2012, suspending the decree that illegally authorized Belo Monte.4 Days after the decision of the TRF-1, at the request of the office of the AGU (Attorney General), the President (Chief Justice) of the Supreme Court determined that the project could continue, ignoring all arguments pertaining to the case’s merit, and ultimately postponing any resolution of the court challenge.5

Presidents and directors of the Brazilian Institute for the Environment and Renewable Resources (IBAMA) quickly ceded licenses and authorizations to the Belo Monte consortium Norte Energia, disregarding all of the risks stemming from grave irregularities with the licensing process. The granting of these permits indicates the use of powerful political pressure, as they contradict the technical opinions of IBAMA’s own staff. In addition, legal conditions placed upon the issuing of environmental licenses – which are obligatory for initiation and continuity of construction – have been repeatedly disregarded by the dam-building consortium.

The countless illegalities associated with the environmental licensing process led Brazil’s MPF to file 13 Civil Public Actions and two Actions of Administrative Fraud by the middle of 2012. Nearly all the legal actions filed by the MPF and the Public Defender’s Office of Pará remain unresolved in the Judiciary, as a result of: 1) unjustified delays, where judges’ decisions are deferred, staying initial rulings that favored preliminary injunctions; 2) conflicts of jurisdiction between the Federal Court in Altamira and the recently created 9th Environmental Court in Belém, leaving cases stalled for more than a year at the decisive moment when construction commenced; and 3) abusive use of the legal instrument known as “suspension of security.”

“Suspension of security” is an authoritarian and anti-democratic legal instrument frequently employed by judiciary powers in the rulings of high courts to impose political decisions on legal judgments, paralyzing their implementation while guaranteeing that the interests of the government and the private sector are met. Its norms were originally implemented in an extra-constitutional manner by the legislature to meet the needs of the military regime, and have remained in Brazil’s legal code since the period of the dictatorship. This device defers the possibility of definitive judicial rulings on the legality and legitimacy of the legislative and administrative measures taken during the environmental licensing of Belo Monte. Presidents of high courts have repeatedly resorted to this mechanism to suspend legal rulings that prohibited the initiation and/or continuation of the damming of the Xingu River. While judgments on the legal merits of the Belo Monte lawsuits face years of delays, the AGU has obtained the overturning of preliminary injunctions – at times in a matter of hours – through the use of the “suspension of security” mechanism.

The rationale behind the use of this mechanism is inconsistent, citing a dubious argument that Brazil would suffer from blackouts without the construction of Belo Monte, resulting in a grave threat to public order and damaging the economy. Recent technical studies for the electricity sector demonstrate opportunities for energy efficiency and alternative energy production with low socio-environmental and financial costs and economic viability when compared with hydroelectric dams.6 However, the government is not open to debate.

There are currently no legal studies or decisions with findings that contradict the grave technical and juridical illegalities of the project as presented in the lawsuits filed by the MPF, public defenders, and civil society organizations. This begs the question: How can a democratic society accept the use of unconstitutional instruments that undermine the responsibility of the Judiciary to uphold the Constitution? How can arbitrary decisions be allowed that result in grave violations to the fundamental rights of affected populations, in addition to irreversible damages to Brazilian social, cultural and environmental heritage?

Decisions that uphold respect for constitutional guarantees, Brazil’s Democratic State of Laws, and the foundations and objectives of the Republic of Brazil have been validated by Brazilian society. One example is the aforementioned decision by the 5th Circuit Court of the TRF-1 that ruled on the obligation to provide prior consultation with the indigenous peoples affected by Belo Monte according to Article 231 of the Federal Constitution and Convention 169 of the International Labor Organization (ILO), both of which stipulate legitimate, fundamental and incontestable rights. It should be highlighted that the same findings appear in preliminary decisions that forbid the start and continuity of the project, given the proportion of the socio-environmental risks presented by the dam’s licensing process. These decisions cannot be subordinated to groundless or monocratic sentences founded on authoritarian artifice, steeped in unconstitutionality and illegitimacy.

The legal situation of the rights of fishermen, as well as riverine and farming communities of the Xingu, is also dramatic. These traditional populations depend exclusively on the river for their livelihoods, subsistence, navigation, and cultural reproduction. In spite of warnings by specialists about Belo Monte’s consequences to navigation and fishing on the river, environmental licenses were conceded with neither mitigation nor compensation measures to offset the impacts upon affected people. The moral damages as well was economic, social, cultural, and environmental losses that have already begun to affect these communities were not measured in advance, nor within the adequate Brazilian standards required for Brazilian companies. For this reason, the few measures that have been taken are insufficient to offset these impacts.7 This situation is aggravated by the fact that the dam-building consortium does not recognize the existence of these impacts and has declared in meetings with extrativist groups that it will not assume responsibility for the various consequences of its own project.8

All of these problems and threats have been brought before the courts by the defenders of affected populations.9 One lawsuit received and injunction that was quickly suspended in 2011, as the ruling judge did not consider the evidence that was presented due to the present nonexistence of the future losses and harm claimed by the plaintiffs, without actually demonstrating the basis for his decision.10 There are more than 32 lawsuits with individual and collective demands of these traditional populations in the courts, nearly all of them paralyzed.

The number of injunctions resulting from these lawsuits is insignificant and without tangible meaning for the life of thousands of people, many who still live in areas adjacent to the dam’s work camps among explosions and the traffic of heavy vehicles, among other impacts of the project. Because of the concession of licenses and legal decisions, these communities now find themselves in a situation of uninterrupted rights violations and the loss of their way of life provoked by the damming of the Xingu. It should be stressed that the right to work is raised in almost all of the lawsuits. Yet in the case of Belo Monte, the courts have disrespected principles and guarantees for workers’ rights such as swift, dynamic and simple procedures with short deadlines and less solemn rites. These are consummate historical rights that guarantee the protection and juridical effectiveness for workers rights in Brazil.

Desperate with the destruction of their livelihood and ways of life, a group of fishermen and boat pilots recently set up camps on fluvial islands near Belo Monte’s coffer dams to demand that urgent measures be taken. In reaction, the company legally requested the de-occupation of the encamped areas. The mandate received compliance in 24 hours, but other affected groups joined and the protest continued.

It was necessary to protest for a month on the coffer dam in disgraceful conditions before the courts placed conditions on the de-occupation orders, obliging the company to hear the communities and competent organizations in order to find a solution. Even so, the meeting took place without complying with the conditions obligated by the courts. The meeting resulted in the right to a technical audit of the river at the expense of the company, mandating the participation of assigned delegates from the fishermen colony. The agreement legally obliges the company to attend to the demands of affected people, but permits the project to continue while its compliance with demands, even those of the utmost urgency, are indefinitely delayed. Therefore the fishermen determine that in practice this judicial negotiation only served to allow the consortium to quickly and definitively dam the river, while affected people’s rights continue to be violated. Proof of this is that immediately following the meeting the courts guaranteed the de-occupation of the area, allowing the project to resume.

In summary, in the name of a supposed “public interest,” members of the judiciary are doing harm to the judicial order. With the fundamental rights of the affected populations being discarded in favor of the ongoing construction, they are faced with a state of exceptions that violates – with the characteristics of a dictatorship – the Democratic State of Laws and Brazilian society as a whole.

This blatant disregard for due process of law is a threat to democracy as we know it, and could have far-reaching effects in Brazil and beyond.

2 Article 231 of the Federal Constitution and the international human rights norms of which Brazil is a party, Convention 169 of the International Labor Organization, the Americana Convention on Human Rights, the San Salvador protocol and the jurisprudence of the Inter-American System of Human Rights

7 The Basic Environmental Plan (PBA) of the consortium reports that the mitigation measures will be implemented only after full installation of the project in 2020.

8 In July and August 2011 the company technicians reported that starting in January 2012 fishermen would be forbidden to travel and fish on the Xingu River; which will dry nearby streams; where roads will not be available for transit; where local residents (including fishermen) will need to acquire cars for themselves (enabling them to transport themselves) even if they do not live in Altamira. In a meeting in September 2011, the President of one of the Fishermen Associations (ACEPOAT) questioned the consortium about the rights of fishermen in the context of the construction of Belo Monte. The company informed them that no rights would be afforded to fishermen, because after construction (2020) fishing would be permitted again, the company would build fish tanks to promote the livelihoods of fishermen, showing a budget for this project of R $ 580,000,000 (US$ 285,500,000).

9 Representatives of the Public Defender and lawyers working on lawsuits brought by fishermen (ACEPOAT, Colony Z-57 and Z-12), riverine and farming communities, and other traditional populations.

10 Afterward the judge reconsidered his decision and declared that his ruling had been altered.